Owuor v. South Louisiana Correctional Center

Filing 10

ORDER DISMISSING CASE. For the reasons set forth in the attached Memorandum and Order, the Petition is dismissed because this court lacks jurisdiction. A certificate of appealability shall not issue because petitioner has not made a substantial sho wing of the denial of a constitutional right. The court certifies that any appeal from this Order would not be taken in good faith and therefore in forma pauperis status is denied for the purpose of an appeal. The Clerk of the Court is respectfully requested to serve a copy of this Memorandum and Order on the petitioner, note service on the docket, enter a judgment of dismissal, and close the case. Ordered by Judge Kiyo A. Matsumoto on 09/10/2012. (Ravi, Sagar)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
-----------------------------X
PETER MAKUSI OTEMBA OWUOR
a.k.a. PETER MAKUSI OWUOR
a.k.a. PETER OWUOR MAKUSI,

MEMORANDUM AND ORDER
12-CV-4338 (KAM)

Pro se Petitioner,
-againstDAVID VIATOR, Warden, South
Louisiana Correctional
Center, on behalf of PEOPLE
OF NEW YORK,
Respondent.
-----------------------------X
MATSUMOTO, United States District Judge:
Petitioner Peter Makusi Otemba Owuor (“petitioner”), a
citizen of Kenya, filed the instant petition for a writ of habeas
corpus pursuant to 28 U.S.C. § 2254 in the United States District
Court for the Western District of Louisiana on April 17, 2012 (the
“Petition”).

(See ECF No. 1, Petition (“Pet.”).)

Specifically,

petitioner asserts that his trial counsel was ineffective for failing
to correctly advise petitioner of the deportation consequences of
his guilty plea to Assault in the Second Degree.

(See Pet. ¶ 12(a)

(citing Padilla v. Kentucky, 130 S. Ct. 1473 (2010)).)

The Petition

was transferred to this court on August 29, 2012, pursuant to 28
U.S.C. § 1406.

Petitioner’s request to proceed in forma pauperis

is granted solely for the purpose of this Order.

Pursuant to Rule

4 of the Rules Governing Section 2254 Cases, the court has conducted
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an examination of the Petition and its accompanying exhibits, and,
for the reasons set forth below, the court dismisses the Petition
for lack of jurisdiction.
BACKGROUND
Petitioner challenges a state court judgment of conviction
entered on February 23, 2004 in Kings County under Indictment No.
175/2003 for Assault in the Second Degree under New York Penal Law
§ 120.05(6) (the “2004 Conviction”).

(Pet. ¶¶ 1-5; ECF No. 1-2,

Memorandum of Law in Support of Petition under 28 U.S.C. § 2254 for
a Writ of Habeas Corpus (“Mem.”) at 1-3.)

Pursuant to a negotiated

plea of guilty, petitioner was sentenced to a six-month term of
imprisonment, which constituted “time served,” and five years of
probation.

(See Pet. ¶ 3; Mem. at 3.)1

That sentence has fully

expired and petitioner was released from state custody for the 2004
Conviction long before he filed the Petition.
On February 18, 2010, petitioner was arrested by
Immigration and Customs Enforcement (“ICE”) agents and charged as
a deportable alien for, inter alia, having overstayed his visa and

1

According to the Petition, petitioner was subsequently
re-sentenced to a nine-month term of imprisonment on May 5, 2008 (see Pet. ¶ 3),
but the resentencing is not mentioned in petitioner’s accompanying Memorandum of
Law and or the New York Supreme Court’s decision summarizing the case history.
See People v. Makusi, No. 175/2003, 2011 N.Y. Misc. LEXIS 2172 (N.Y. Sup. Ct. Apr.
22, 2011), leave to appeal denied, No. 2011-11631, Decision & Order on Application
(N.Y. App. Div. 2d Dep’t Feb. 22, 2012) (Lott, J.). The nine-month sentence is
likely related to one of petitioner’s other several convictions. See id. at *3
(“Defendant has a significant criminal history including several convictions in
Georgia, Alabama, and New Jersey between 1995 and 2008.”).

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for the 2004 Conviction he is challenging here.

(Pet. ¶ 18; Mem.

at 4); see Makusi, 2011 N.Y. Misc. LEXIS 2172, at *4 (describing the
circumstances surrounding the February 2010 arrest by ICE agents).2
Although the 2004 conviction was ultimately found not to be a valid
ground for his removal, petitioner asserts that the 2004 Conviction
“barred him from being considered by the immigration court for
various defenses to relief for removal,” including asylum.
at 4-5; see also Pet. ¶ 18.)

(Mem.

On April 15, 2011, an immigration court

ordered petitioner removed to Kenya.

(Mem. at 5.)

Petitioner was

in the custody of ICE at the South Louisiana Correctional Center in
Basile, Louisiana at the time he filed the Petition in April 2012.
(See Pet. at 1.)
DISCUSSION
Section 2254 authorizes federal courts to “entertain an
application for a writ of habeas corpus in behalf of a person in custody
pursuant to the judgment of a State court only on the ground that
he is in custody in violation of the Constitution or laws or treaties
of the United States.”

28 U.S.C. § 2254(a).

“This provision

‘requir[es] that the habeas petitioner be ‘in custody’ under the

2

Petitioner’s arrest was not his first encounter with ICE agents.
On May 23, 2008, petitioner falsely represented himself as a United States citizen
to ICE agents and made several other false statements, resulting in his convictions
for falsely representing himself to be a United States citizen, in violation of
18 U.S.C. § 911, and making false statements, in violation of 18 U.S.C.
§ 1001(a)(2), which were affirmed on appeal. See United States v. Owuor, 397 F.
App’x 572 (11th Cir. 2010), cert denied, 131 S. Ct. 1522 (Feb. 22, 2011).

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conviction or sentence under attack at the time his petition is
filed.’”

Finkelstein v. Spitzer, 455 F.3d 131, 133 (2d Cir. 2006)

(quoting Maleng v. Cook, 490 U.S. 488, 490-91 (1989)).

When a

petitioner’s sentence for a conviction has fully expired, the
conviction may not be challenged because the petitioner is no longer
‘in custody’ pursuant to that conviction.

See Lackawanna County

Dist. Attorney v. Coss, 532 U.S. 394, 401-02 (2001); see Maleng, 490
U.S. at 491-92.

The collateral consequences of a conviction for which

the sentence has fully expired are insufficient to render a petitioner
“in custody” under Section 2254(a), Maleng, 490 U.S. at 492-93, and
the Second Circuit has stated that “[r]emoval proceedings are at best
a collateral consequence of conviction . . . .”

Ogunwomoju v. United

States, 512 F.3d 69, 75 (2d Cir. 2008).
Here, petitioner filed the Petition challenging the 2004
Conviction when he was no longer “in custody” pursuant to that
conviction but rather was in ICE custody due to an order of removal.
The Second Circuit has explicitly held “that immigration detention
is not ‘custody’ for the purposes of establishing jurisdiction to
consider habeas petitions challenging a state court conviction
pursuant to 28 U.S.C. § 2254,” even where the immigration detention
or order or removal is a direct consequence of the state conviction
being challenged.

Id. at 70, 74-75 (finding that a petitioner was

not “in custody” under Section 2254 where his state court sentence
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consisting of “time served” incarceration and a license suspension
had been fully served years before he filed his habeas petition from
the place of his immigration detention, where he was in custody
pending further action in a removal proceeding); see also
Camara v. New York, No. 11-CV-8253, 2012 U.S. Dist. LEXIS 112465,
at *10-12 (S.D.N.Y. Aug. 9, 2012) (collecting cases dismissing habeas
petitions for lack of jurisdiction where petitioners are in
immigration detention).

The fact that petitioner was initially

arrested and placed in ICE custody based in part on a charge related
to the 2004 Conviction does not change this result.
512 F.3d at 74-75.

See Ogunwomoju,

Accordingly, because petitioner fails to satisfy

the “in custody” requirement of Section 2254(a), this court lacks
jurisdiction over the Petition and it is therefore dismissed.3
CONCLUSION
For the reasons set forth above, the Petition is dismissed
because this court lacks jurisdiction.

A certificate of

appealability shall not issue because petitioner has not made a
substantial showing of the denial of a constitutional right.
U.S.C. § 2253(c)(2).

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The court certifies that any appeal from this

Order would not be taken in good faith and therefore in forma pauperis
status is denied for the purpose of an appeal.
3

28 U.S.C. § 1915(a)(3);

Alternatively, the court would likely find that petitioner’s claim
of ineffective assistance of counsel is meritless for substantially the same
reasons as the New York Supreme Court’s thorough decision on the same issue. See
Makusi, 2011 N.Y. Misc. LEXIS 2172.

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Coppedge v. United States, 369 U.S. 438, 444-45 (1962).

The Clerk

of the Court is respectfully requested to serve a copy of this
Memorandum and Order on the petitioner, note service on the docket,
enter a judgment of dismissal, and close the case.
SO ORDERED.
Dated:

September 10, 2012
Brooklyn, New York
_________/s/_________________
KIYO A. MATSUMOTO
United States District Judge
Eastern District of New York

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